' MANZOOR AHMAD MALIK, J.---This judgment shall dispose of Criminal Appeal No,1869 of 2004 Muhammad Nawaz v. The State and Murder Reference No,477 of 2005 sent by the learned trial Court for confirmation or otherwise of the sentence of death awarded to the appellant, as both these matters arise out of the same judgment dated 27-10-2004 passed by the learned Additional Sessions Judge, Jaranwala (Faisalabad), whereby, appellant was convicted for the murder of Muhammad Afzal Adeel (deceased) under section 302(b), P.P.C. And sentenced to death with a further direction to pay a compensation of Rs,1,00,000 as provided under section 544-A, Cr.P.C. To the legal heirs of the deceased in default whereof to further undergo S.I. For six months. However, benefit of doubt was extended to Altaf and Sajjad co-accused of the appellant by way of acquittal from the charges leveled against them. Criminal Miscellaneous. No,2387-M of 2008 filed for condonation of delay in filing appeal against their acquittal was dismissed vide order of a learned Division Bench of this Court dated 15-4-2009.
2. Brief facts of the case, as given by P.W.4 Muhammad Ashraf (complainant) in the F.I.R. (Exh.PB/1) are that on 2-4-2001 at about 5-45 p.m., he along with his brothers Muhammad Afzal Adeel (deceased), Muhammad Akram, Allah Rakha son of Abdul. Rashid and Ghulam Sarwar son of Ghulam Nabi left Adda Awagat for Chak No,106-GB on their respective bicycles. According to the complainant, at about 6-00 p.m. When they reached near the said Chak at mettled road Lambianwala More, Muhammad Nawaz (appellant), Sajjad and Altaf armed with .30 bore pistols emerged there. It has been mentioned by the complainant in the F.I.R. That Altaf raised a Lalkara to kill Muhammad Afzal Adeel by firing at him and forced him to get down from the bicycle and then Muhammad Nawaz (appellant) fired with his pistol at Muhammad Afzal Adeel which hit him on the left side of his chest followed by pistol fires by all the accused, including the appellant, which hit on different parts of the body of Muhammad Afzal Adeel (deceased). It has further been mentioned in the F.I.R. That, apart from complainant, the occurrence was witnessed by Allah Rakha, Ghulam Sarwar and Muhammad Akram. The complainant also stated in the F.I.R. That on the hue and cry raised by them, the accused decamped from the spot while making aerial firing. As per F.I.R., the complainant also alleged that Muhammad Afzal Adeel succumbed to the injuries at the spot. The motive stated in the F.I.R. Was that few days prior to the occurrence, appellant Muhammad Nawaz and deceased Muhammad Afzal Adeel quarrelled with each other which nourished a grudge in the mind of Muhammad Nawaz appellant who, with the connivance of his co-accused, killed the deceased.
3. After completion of the investigation, challan was prepared and submitted before the learned trial Court, copies were distributed to the accused as required under section 265-C, Code of Criminal Procedure, charge was framed to which accused pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution produced as many as 9 witnesses during the trial. The appellant and his acquitted co-accused were examined under section 342, Cr.P.C. They neither produced any evidence in defence nor opted to depose on Oath as required under section 340(2), Cr.P.C. However, the learned trial Court convicted and sentenced the appellant and acquitted two co-accused of the appellant, as detailed above.
5. Learned counsel for the appellant contends that there are material improvements in the statements of both the eye-witnesses, i. e . P. W.4 Muhammad Ashraf (complainant) and P.W.5 Allah Rakha because P.W.4 Muhammad Ashraf (complainant) has stated in the F.I.R. That Muhammad Nawaz appellant, along with his acquitted co-accused, while armed with .30 bore pistols, who were sitting in ambush came in front of them, Muhammad Nawaz appellant fired a shot with his pistol which hit on the left side of chest of the deceased and thereafter the appellant along with his acquitted co-accused fired shots with their respective pistols which landed on different parts of the body of Muhammad Afzal Adeel (deceased), same was the statement of P.W.5 Allah Rakha before the police and the similar story finds mention in the Inquest Report (Exh.PH) in the column of "brief facts". Learned counsel further contends that while appearing before the Court, P.W.4 Muhammad Ashraf (complainant) and P.W.5 Allah Rakha had improved their statements by stating that Muhammad Nawaz appellant fired first shot which hit on the left side of chest of Muhammad Afzal Adeel (deceased) while second shot of the appellant hit below the flank on the right side of the deceased, whereas, the fire of Sajjad (acquitted co-accused) hit on the left side of abdomen of deceased and fire of Muhammad Altaf (acquitted co-accused) stamped on the knee of the deceased; that both these P. Ws. Were confronted with their previous statements (Exh.PB and Exh.DA), respectively, and that they are not the reliable witnesses.
' Learned counsel further contends that there is conflict between the ocular account and the medical evidence because in the postmortem examination report there are four firearm injuries on the person of the deceased i.e, Injury No,2 is on the right chest of the deceased which injury, as per doctor, is fatal but the same has not been attributed to anybody; that as a matter of fact there is an injury on the left flank of the body of the deceased which is Injury No,4; that dimension of all the injuries is different which suggests that more than one firearms were used in the incident.
According to the learned counsel, as per ocular account the deceased was fired from a distance of 2/3 feet but there is not blackening around the wounds.
' Learned counsel has vehemently argued that the motive alleged by the prosecution is very vague, rather, the same has not been proved because the complainant in his statement before the Court has stated that he was not present at the time of earlier quarrel which took place between the deceased and the appellant.
' While advancing his submissions learned counsel contends that two co-accused of the appellant, who were attributed similar role, have been acquitted by the learned trial Court and appeal filed against their acquittal was dismissed by this Court; that the same evidence cannot be believed qua the appellant without any strong corroboration which is very much lacking in this case; that the recovery of weapon of offence and report of the Forensic Science Laboratory are of no avail to the prosecution as both articles (crime empties and pistol) were sent to the Forensic Science Laboratory together and even P.W.2 Muhammad Anwar, who, as per report of the FSL (Exh.PM), deposited these articles in the Laboratory, has not stated a single word in Court about taking of weapon and empties to the Laboratory; that the Investigating Officer of the case, namely, P.W.8 Muhammad Akram Shah S.I, during his examination-in-chief, has stated that one Faryad was the real culprit of the case but he did not arrest him because the complainant party did not produce any evidence against him.
' While concluding his submissions learned counsel submits that if this Court is not convinced with the argument of acquittal then at least it is not a case of capital sentence.
' In support of the above submissions, learned counsel has placed reliance on Muhammad Safdar v. The State 2006 YLR 124 and Barkat Ali v. Muhammad Asif and others 2007 SCM R 1812.
6. On the other hand, the learned Additional Prosecutor General for the State assisted by the learned counsel for the complainant, while vehemently opposing this appeal, contends that the appellant is named in the F.I.R. With a specific role; that the natural eye-witness account was furnished by the prosecution and despite cross-examination the defence could shake nothing from their testimony; that the P.Ws. Had no enmity with the appellant to falsely depose against him during the trial; that, even otherwise, in such-like cases substitution is a rare phenomenon; that the ocular account in this case is corroborated by the medical evidence so far as the case of the appellant is concerned; that the case of the appellant is distinguishable from the acquitted co- accused because the appellant was attributed a specific firearm injury on the left chest of the deceased which is available in the medical evidence; that the prosecution has proved its case against the appellant beyond any shadow of doubt; that the minor discrepancies in the statements of the P.Ws. Are not material and may be ignored because evidence in this case was recorded after about three years of the occurrence; that the ocular account further finds support from the recovery of weapon of offence and positive report of the Forensic Science Laboratory and that the conviction and sentence awarded to the appellant by the learned trial Court be maintained.
7. We have heard learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the evidence on record with the able assistance of learned Advocates for the parties.
8. Occurrence in this case took place on 2-4-2001 at about 6-00 p.m., the matter was reported to the police by P.W.4 Muhammad Ashraf (complainant) at Adda Awagat at about 7-00 p.m., the formal F.I.R. Was registered on the same day at about 7-30 p.m. While the distance between the place of occurrence and the Police Station was about 11 miles. As the matter was reported to the police within an hour of A the occurrence, therefore, we are of the view that there is no delay in lodging the F.I.R.
9. We have noted that in the F.I.R. There is a specific allegation against Muhammad Nawaz appellant to have fired B at the deceased which hit on the left side of chest of the deceased while there was a general allegation against the appellant and his acquitted co-accused that thereafter they all made firing with their respective .30 B bore pistols which fires landed on the different parts of body of Muhammad Afzal Adeel (deceased) but no specific injury was attributed to the acquitted (co-accused) of the appellants. It is correct that both the witnesses i.e, P.W.4 Muhammad Ashraf (complainant) and P.W.5 Allah Rakha made improvements in their statements while appearing before the Court but the fact remains that the firearm injury attributed to the appellant was not only mentioned in the F . I. R. (Exh PB/1) lodged by P . W . 4 Muhammad Ashraf (complainant) but also C in the statement of P.W.5 Allah Rakha recorded under section 161, Cr.P.C.
And in the statements of both these eye-witnesses before the Court which is Injury No,2(a). For a facility of reference, the injuries noted by P.W.9 Dr. Abdul Sattar, who conducted postmortem examination on the body of Muhammad Afzal Adeel (deceased), are as under:-- "(1) a. A firearm lacerated wound 1/3 x 1/3 c.m. With inverted margins 6 c.m. Above left knee. This was wound of entry. b. A lacerated wound 1/2 cm x 1/2 cm with averted margins inner side of left knee. This was wound of exit.
(2) a. A lacerated wound measuring 2 c.m. x 2 c.m. Present on front side of right lower chest with inverted margins, that was wound of entry. b. A lacerated wound on back of lower chest 3 c.m.
Away from back bone on right side measuring 2 c.m. x 2 c.m. With averted margins that was wound of exit.
(3) a. A lacerated wound 1 c.m. x 1 cm middle part of left chest 7 c.m. Away from left nipple. Margins were inverted and that was wound of entry b. A lacerated wound 2 c.m. x 2 c.m. With averted margins left back lower end of scapula---wound of exit.
(4) a. A lacerated wound measuring 2 c.m. x 2 c.m. Left lower end outer part of the abdomen- averted margins---wound of entry. b. A lacerated wound 2 c.m. x 2 c.m. Left mid buttock averted margins---wound of exit."
10. We have also noted that case of the appellant is distinguishable from the case of his acquitted co-accused for the reasons that they were not attributed any specific injuries in the F.I.R., no recovery was effected from them during the course of investigation and they were rightly acquitted by the learned trial Court against whose acquittal petition for condonation of delay in filing the appeal against their acquittal was dismissed by a learned Division Bench of this Court on 15-4- 2009 in Criminal Miscellaneous No,2387-M of 2008.
11. As far as recovery of .30 bore pistol from Muhammad Nawaz appellant and positive report of the Forensic Science Laboratory (Exh.PM) is concerned, it is on the record that the crime empties of .30 bore pistol were recovered from the spot on 2-4-2001, appellant was arrested on 8-4-2001 and .30 bore pistol (Exh.PE) was recovered at his instance on 16-4-2001 while both these articles were sent to the Forensic Science Laboratory on 23-4-2001.
' Muhammad Anwar (P.W.2), who allegedly took these articles to the Forensic Science Laboratory, has stated nothing before the Court qua carrying those articles to the Laboratory. Apart from above, as these articles were sent together to the Laboratory after arrest of the appellant, therefore, positive report of the Forensic Science Laboratory (Exh.PM) has become doubtful. In this regard reliance is placed on Muhammad Ashfaq v. The State 1995 SCM R 1321, wherein, at page 1326, it was held as under:-- ' The crime empty was sent to the Ballistic Expert after the recovery of the gun, therefore, the Recovery has become doubtful..........................
12. Even if this piece of evidence of recovery of weapon and positive report of the Forensic Science Laboratory is excluded from the prosecution evidence, then there is sufficient incriminating evidence against the appellant to maintain conviction on the basis of statements of both the eye- witnesses, namely, P.W.4 Muhammad Ashraf (complainant) and P.W.5 Allah Rakha which, in our view, are confidence-inspiring. As far as arguments of the learned counsel for the appellant regarding contradictions amongst the ocular account and the medical evidence are concerned, those are technical in nature and cannot shatter the testimony of the natural witnesses of the occurrence. The ocular account in this case finds support from the medical evidence furnished by P.W.9 Abdul Sattar, to the extent of the appellant.
13. So far as motive part of the prosecution case is concerned, the prosecution has not produced any independent witness to prove the same. The complainant has admitted in Court that he was not present at the time of earlier quarrel which took place between Muhammad Afzal Adeel (deceased) and Muhammad Nawaz appellant, so, we are of the view that the prosecution has failed to prove the motive part of the prosecution case. In our view, it is a case in which nobody knew as to what happened immediately prior to the occurrence.
14. In the afore-referred circumstances, this Court is of the considered view that the prosecution has proved its case against the appellant beyond any E shadow of doubt, therefore, conviction of the appellant under section 302(b), P.P.C. Is hereby maintained.
15. However, we have noted that it is not a case of capital sentence and there are mitigating circumstances in this case. In the F.I.R., only one specific injury was attributed to the appellant on the left side of chest of the deceased but while appearing before the Court both the eye-witnesses i.e, P.W.4 Muhammad Ashraf (complainant) and P.W.5 Allah Rakha have made improvement and attributed another specific shot to the appellant on the right side of the chest of the deceased.
Both these witnesses (P.W.4 and P.W.5) while appearing before the Court also attributed specific firearm injuries to the acquitted co-accused (Muhammad Altaf and Muhammad Sajj ad). Even the motive, alleged by the prosecution, has also not been proved. Therefore, in the circumstances, it would not be safe to maintain the sentence of death. In this regard reliance is placed on Iftikharul Hassan v. Israr Bashir and another PLD 2007 SC 111, wherein, at page 119 of the judgment, the learned apex Court has been pleased to hold as under:-- ".... The difference of punishment for Qatl-e-amd as Qisas and Tazir provided under sections 302(a) and 302(b), P.P.C. Respectively is that in a case of Qisas, Court has no discretion in the matter of sentence whereas in case of Tazir Court may award either of the sentence provided under section 302(b), P.P.C. And exercise of this direction in the case of sentence of Tazir would depend upon the facts and circumstances of the case. There is no cavil to the proposition that an offender is absolved from sentence of death by way of Qisas if he is minor at the time of occurrence but in a case in which Qisas is not enforceable, the Court in a case of Qatl-e-amd, keeping in view the circumstances of the case, award the offender the punishment of death or imprisonment for life by way of Tazir. The proposition has also been discussed in Ghulam Muretaza v. State 2004 SCM R 4, Faqir Ullah v. Khalil-uz-Zman 1999 SCM R 2203, Muhammad Akram v. State 2003 SCM R 855 and Abdus Salam v. State 2000 SCM R 338."
16. In view of the above discussion, the sentence of death of the appellant is converted into imprisonment for life. The amount of compensation and imprisonment in default thereof, as ordered by the learned trial Court, shall remain intact. Benefit of section 382-B, Cr.P.C. shall be extended to the appellant. This appeal is partly allowed with the above modification in the quantum of sentence.
' Murder Reference is answered in the Negative and sentence of death is not confirmed.